Allowed

Bhivaji Shamrao Gavli v. Shivaji Kerba Gavli and Ors.

Bombay HC4 Aug 2023WP/5962/2023

Case brief

AI extract

What is this about?

The High Court quashed orders granting police aid for executing a possession warrant and rejecting a stay application. The Bench held that since the appeal was pending on merits regarding a residential house, the execution proceedings should have been deferred to avoid rendering the appeal infructuous.

What did the court decide?

Quashed impugned orders; allowed applications filed in Regular Darkhast No.10 of 2022.

Bhivaji Shamrao Gavli Vs Shivaji Kerba Gavli and Ors. — Property and Title | Bombay HC (2023)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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WRIT PETITION NO. 5962 OF 2023

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Bhivaji Shamrao Gavli Versus

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Shivaji Kerba Gavli & Ors.

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...Petitioner.

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...Respondents.

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Mr. Yuvraj Narvankar for the petitioner.

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Mr. Rugwed Kinkar and Dheeraj Patil i/b Drupad S. Patil for the respondents.

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——————

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Coram : Sharmila U. Deshmukh, J. Date : August 4, 2023.

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P. C. :

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Heard.

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The challenge in the petition is to the order dated 15^th April 2023 granting police aid to the decree holder for execution of the possession warrant and the order dated 18^th April 2023 rejecting the petitioner's application seeking stay to the execution till the decision in appeal.

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Learned counsel appearing for the petitioner submits that as against the judgment and decree dated 22^nd July 2019, an appeal is preferred before the District Court, being Regular Civil Appeal No. 36 of 2022. He would further submit that as the appeal was beyond the

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Patil-SR Digitally signed by SACHIN RAMCHANDRA SACHIN PATIL RAMCHANDRA PATIL Date: 2023.08.05 10:38:29 +0530

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prescribed period of limitation, an application for condonation of delay was filed as well as the stay to the decree was sought. He would further contend that as the same was pending adjudication, an application was preferred before the executing Court seeking condonation of delay in filing the application for stay.

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Per contra , learned counsel for the respondent submits that no orders were passed in the appellate proceedings and, as such, the executing court has directed to provide the police aid to execute the possession warrant.

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5. Considered the submissions.

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The judgment and decree dated 22^nd July 2019 directs the petitioner to hand over the possession of suit property. It is not disputed that the property in question is the residential house of petitioner. The factum of filing of appeal is also not disputed. In Regular Darkhast No.10 of 2022, an application came to be moved seeking the stay of judgment till the condonation application and stay application is heard by the appellate court.

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The executing court has rejected the application on the ground that the appellate court was not approached within time and

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Patil-SR

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that the applicant will not sustain substantial loss. It also observed that the possession warrant was issued despite objection by the petitioner and there is delay to approach the executing court also.

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Considering that the appeal was pending before the appellate court in which the application for condonation of delay as well as stay application was under consideration of the appellate court, the trial court could have deferred the hearing of execution application. It ought to be noted that if the possession warrant is executed, the appeal will be rendered infructuous. Considering that the decree is in respect of the possession of residential house, a lenient view ought to have been taken.

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In view of the above, the impugned orders dated 15^th April 2023 and 18^th April 2023 are hereby quashed and set aside. As a result of order dated 15^th April 2023 being quashed, the applications filed below Exhibit-16 and Exhibit-20 stand allowed.

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Writ petition stands disposed of.

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[Sharmila U. Deshmukh, J.]

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Patil-SR

Bhivaji Shamrao Gavli v. Shivaji Kerba Gavli and Ors.

Case brief

What is this about?

What did the court decide?

Bhivaji Shamrao Gavli v. Shivaji Kerba Gavli and Ors.

Case brief

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